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Locke Lord QuickStudy: Senate May Delay ICANN From Global Expansion of Internet Addresses

12/5/2011

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Senate May Delay ICANN From Global Expansion of Internet Addresses

On Thursday, December 8, the Senate Commerce Committee (the “Committee”) will conduct a hearing investigating the need for a delay in the implementation of the Internet Corporation for Assigned Names and Numbers’ (ICANN) major expansion of global Internet Addresses (Top Level Domains). Brand owners in the insurance and energy industries and in most other industry sectors have long feared that the expansion will substantially increase the costs of vigilance over their brands and company names and increase the risks of piracy and fraud involving imitations and impersonations of their brands and names. Clients who wish to make their views known to the Committee can file written comments with the committee to be considered by its policy staff. Also, clients can have private interviews with committee policy staff members.

In January 2012, ICANN will begin allowing interested organizations and companies to apply for additional top level domains unrestricted. Other groups that may be interested in this issue are consumer groups, government cyber security agencies and law enforcement that may be concerned that the ICANN expansion may confuse consumers, increase the already unacceptable level of fraud and identity theft on the Internet, create new opportunities for Internet crime, and jeopardize cyber security.

The Committee Hearing
According to the Committee notice, this hearing will examine the merits and implications of this new program and ICANN’s continuing efforts to address concerns raised by the Internet community. The 10:00 a.m. hearing will be webcast live via the Committee website. Viewers must refresh the homepage 10 minutes prior to the scheduled hearing start time to automatically begin streaming the webcast. The witness list for the hearing is expected to be published on the Committee website this afternoon, December 5, 2011.

The setting of this hearing on the eve of ICANN’s beginning the expansion of Top Level Domains is surprising since there has already been a lengthy period for comment on the plan by all interested parties including the Congress. The U.S. Government and Congress have until now shown little interest in examining the public and private implications of the ICANN plan.

The hearing was sparked by the Coalition for Responsible Internet Domain Oversight’s (CRIDO) letter to the Secretary of the U.S. Department of Commerce, requesting a postponement of the implementation of the ICANN plan. CRIDO is a consortium of a bevy of big-name companies, trade associations and organizations. Click here to view the CRIDO letter and the list of affiliates beginning on page 2.

Coalition Letter to U.S. Commerce Department
The Coalition claims in its letter that ICANN’s action was taken despite widespread and significant objections raised throughout the process by many in the global community of Internet users. It says ICANN’s decision was not made in the public interest, does not promote consumer trust, and does not benefit the public, as required in a September 30, 2009, Agreement between the U.S. Government (though the National Telecommunications Administration) and ICANN.

The 2009 Agreement requires that ICANN meet a standard set in provision 9.3 of the Agreement:

ICANN will ensure that as it contemplates expanding the top-level domain space, the various issues that are involved (including competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection) will be adequately addressed prior to implementation.

The Coalition also complains that facts showing a conflict of interest have come to light since ICANN announced the most recent iteration of the Applicant Guidebook which cast a shadow over the entire process leading up to ICANN’s decision.

Also, the Coalition posits that the current state of the global economy raises substantial issues regarding the wisdom of moving forward with ICANN’s plan, given its undisputed costs and its merely claimed benefits.

Further, the Coalition claims that ICANN’s plan would unduly burden a diverse range of public and private brand holders, as they would be forced to spend ever-greater amounts of time and resources simply to protect their brands. In addition, the Coalition says there is an unacceptably high risk that the ICANN plan would confuse consumers, increase the already unacceptable level of fraud and identity theft on the Internet, create new opportunities for Internet crime, and jeopardize cyber security.

The Coalition calls on the U.S. Government to persuade ICANN to postpone the opening of the top-level domain application window unless or until such time as ICANN convincingly demonstrates that unlimited Top Lever Domain expansion would:

• Promote consumer trust;
• Enhance Internet security;
• Promote widespread economic benefits across diverse economic sectors and stakeholders; and
• Demonstrate that these benefits will exceed the costs that such Top Level Domain expansion would inevitably impose on the global Internet community.

Implications
If they act promptly, owners of brand and company names in all industries have a second bite at the apple to delay and revise the ICANN expansion of Internet addresses that will reduce the costs of vigilance over their names and the risks of piracy and fraud involving imitations and impersonations of their names. Congress appears to have some serious power over ICANN through the 2009 Agreement with ICANN on whether ICANN has complied with its agreement obligation to adequately address these issues prior to implementing the major global domain name expansion. It is unclear whether this time the Congress and other government agencies will use their powers to delay the ICANN initiative and address some of the issues raised in the Coalition letter.

For more information, please contact the author: 

Paul C. Van Slyke | T: 713-226-1406 | pvanslyke@lockelord.com